Charanjit Singh, President
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite party on the allegations that the complainant has got herself insured with Health Insurance of the opposite party vide insurance policy No. 18315072 valid from 25.9.2020 to 24.9.2023 by paying the insurance premium of Rs. 51,164/- to the opposite party. The representative of the opposite party had recommended the above said policy to the complainant, so believing this representative, the complainant opted for the above said policy and opposite party issued the policy to the complainant bearing above mentioned number .The policy issued by the opposite party was cashless treatment type whereby the opposite party will bore all the expenses of the complainant’s treatment in case of need. The opposite party has conducted medical tests of the complainant before issuing of the above mentioned policy from some physician. The complainant suddenly felt some medical complicacies which included complaint of severe Heart burn, Nausea on & off, repeated cuff and chest in comfort and as such, she approached the Thappar Hospital and Research Institute, G.T. road Moga, Punjab and was diagnosed with sliding Hiatal Hernia on 19.3.2023 and was advised Surgery for this ailment by the hospital. The complainant informed the hospital authorities of above said hospital that she covered by the Health Insurance of the opposite party and as such all the expenses of the treatment will be borne by the opposite party so the hospital authorities called the representatives of the opposite party for approval of the treatment but it was told by them this hospital is not the penal of Hospital of this company and as such cashless treatment is not available at this hospital and only reimbursement claim can be lodged with the opposite party after paying the expenses of the treatment to the hospital by the complainant from her own pocket. So believing their words the complainant has undergone the treatment from the hospital mentioned above and remained admitted in the hospital from 19.3.2023 to 23.3.2023. The complainant paid Rs. 3,91,456/- in total to the hospital which includes all the expenses during the stay at the hospital from her own pocket. The complainant was discharged from the hospital on 23.3.2023 and the complainant immediately approached the opposite party and lodged the reimbursement insurance claim of Rs. 3,91,456/- with the opposite party and also handed over all the required documents as demanded by this party including the bills of treatment and also discharge summary and on receipt of these documents, the opposite party immediately registered the reimbursement insurance claim with it and gave a claim number to the complainant. The opposite party assured the complainant that reimbursement of Rs. 3,91,456/- will be made to the complainant within a fortnight so the complainant awaited for this time for receiving the reimbursement. The complainant was embarrassed and astonished when he received a letter dated 23.4.2023 addressed to the complainant whereby the OP had given vague reasons for denial of the reimbursement claim to the complainant whereby saying that the complainant had not disclosed the obesity at the time of inception of policy, so the complainant approached the opposite party who told the complainant that the reason given by it in the denial letter is the final report given to deny the reimbursement to the complainant but still the complainant pursued the matter for getting the reimbursement from the opposite party. The complainant has prayed the following relieves:-
- The opposite party may kindly be directed to release the reimbursement claim of Rs. 3,91,456/- to the complainant immediately.
- The opposite party may kindly be directed to pay compensation of Rs. 50,000/- for causing harassment of complainant.
- The opposite party may kindly be directed to pay litigation expenses of Rs. 50,000/- to the complainant.
Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. C-1, Self attested copy of Bill of treatment Ex. C-2, Self attested copy of Summary of treatment record Ex. C-3, Self attested copy of Bill of treatment Ex. C-4, Self attested copy of Denial letter Ex. C-5, Self attested copy of Adhar Card of the complainant Ex. C-6.
2 Notice of this complaint was sent to the opposite party and opposite party appeared through counsel and filed written version by interalia pleadings that a Medi-claim policy namely "POS CARE" bearing Policy No. 18315072 was availed by Ms. Kamlesh Chopra covering herself for the policy period of 25.9.2020 till 24.9.2023 for a sum insured up to Rs. 5,00,000/- subject to policy terms and conditions. The present complaint is legally not maintainable and liable to be dismissed. The complainant has concealed the true and material facts from the knowledge of this Commission, therefore, she is not entitled for any claim. A reimbursement claim (93091891-00) was received by the opposite party on 3.4.2023 for the hospitalization of the insured at Thappar Hospital and Research Institute from 19.3.2023 till 23.3.2023 for the diagnosed case of Sliding Hiatal Hernia. After scrutinizing the documents received the opposite party rejected the claim on the grounds of Non- Disclosure of Obesity (High BMI> 37) at the time of policy inception and intimation in this regard was given to the complainant vide letter dated 23.4.2023. During the investigation, the complainant herself had filed in her weight to be 95 Kg, with height of 163 cms, hence her Body Mass Index falls under the range of obesity. As per underwriting guidelines of opposite party, had the same been disclosed, the policy would not have been issued in the first place. The complainant had an opportunity to declare the true state of health to the opposite party at the time of availing the policy, however, she refrained from doing so. Even at the time of availing the policy the complainant was bound under the doctrine of good faith to have disclosed the PED but failed to do so. Furthermore, given the complainant underwent treatment for the same PED, makes it even more important as to why the same ought to have been disclosed. The said disclosure would have assisted in foreseeing the risk at hand, the policy would have been issued accordingly. The claim of the complainant has been repudiated as per terms and conditions of the policy. The relevant clause as per policy terms and conditions is as follows:
1.21 Disclosure to Information Norm
The policy shall be void and all premium paid hereon shall be forfeited to the Company, in the event of misrepresentation, mis-description or non-disclosure of any material fact.
7.1. Disclosure to Information Norm
If any untrue or incorrect statements are made or there has been a misrepresentation, mis-description or non-disclosure of any material particulars or any material information having been withheld or if a claim is fraudulently made or any fraudulent means or devices are used by the policyholder or the insured person or any one acting on his/their behalf, the company shall have no liability to make payment of any claims and the premium paid shall be forfeited ab intio to the Company. The Insurance Regulatory and Development Authority of India (IRDAI) (Protection of policy Holder's Interest) Regulations, 2017 under Clause 19(4) enumerating the "General Principal casts an absolute duty to disclose all material facts to the Insurer in order to assess the risk as per it's capacity. The same in reproduced herein for your reference:
"The policyholder shall furnish all information that is sought from him by the insurer either directly or through the distribution channels which the insurer considers as having a bearing on the risk to enable the insurer to assess properly the risk covered under a proposal for insurance."
Thus the complainant herein is not only acting in breach of the Policy Terms and Conditions governing the policy, but also has acted in blatant violation of the above stated Regulations. Both the parties are bound with the terms and conditions of the policy and in this case the complainant has not complied with the terms and conditions of the policy. The terms and conditions of the policy were duly supplied to the complainant at the time of issuance of policy. The complainant is estopped by his own act and conduct from filing the present complaint. The complainant has no locus standi to file the present complaint. The policy was issued on the basis of proposal form filled by the complainant. The cashless facility request is merely a facility being provided by the Company for the benefit of its consumer. The said facility cannot be claimed as a matter of right by the Customer and the company shall approve the same only when the company is sure that the claim of the claimant is payable as per the policy terms and conditions. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party has placed on record affidavit of Lakshay Juneja, Manager Legal Ex. OP-1, Self attested copy of authority letter Ex. OP-2, Self attested copy of policy Ex. OP-3, Self attested copy of terms and conditions Ex. OP-4, Self attested copy of claim form Ex. OP-5, Self attested copy of discharge summary Ex. OP-6, Self attested copy of proposal form Ex. OP-7, Self attested copy of repudiation letter Ex. OP-8, Self attested copy of medical opinion Ex. OP-9, Self attested copy of evidence regarding that complainant herself had filed in her weight to be 95 Kg with height of 163 cms Ex. OP-10.
3 We have heard the Ld. counsel for the complainant and opposite party and have carefully gone through the record placed on the file.
4 Ld. counsel for the complainant contended that the complainant has got herself insured with Health Insurance of the opposite party vide insurance policy No. 18315072 valid from 25.9.2020 to 24.9.2023 by paying the insurance premium of Rs. 51,164/- to the opposite party. The policy issued by the opposite party was cashless treatment type whereby the opposite party will bore all the expenses of the complainant’s treatment in case of need. The complainant suddenly felt some medical complicacies which included complaint of severe Heart burn, Nausea on & off, repeated cuff and chest in comfort and as such, she approached the Thappar Hospital and Research Institute, G.T. Road Moga, Punjab and was diagnosed with sliding Hiatal Hernia on 19.3.2023 and was advised Surgery for this ailment by the hospital. The complainant informed the hospital authorities of above said hospital that she covered by the Health Insurance of the opposite party and as such, all the expenses of the treatment will be borne by the opposite party so the hospital authorities called the representatives of the opposite party for approval of the treatment but it was told by them this hospital is not the penal of Hospital of this company and as such cashless treatment is not available at this hospital and only reimbursement claim can be lodged with the opposite party after paying the expenses of the treatment to the hospital by the complainant from her own pocket. He further contended that believing their words, the complainant has undergone the treatment from the hospital mentioned above and remained admitted in the hospital from 19.3.2023 to 23.3.2023. The complainant paid Rs. 3,91,456/- in total to the hospital which includes all the expenses during the stay at the hospital from her own pocket. The complainant was discharged from the hospital on 23.3.2023 and the complainant immediately approached the opposite party and lodged the reimbursement insurance claim of Rs. 3,91,456/- with the opposite party and also handed over all the required documents as demanded by this party including the bills of treatment and also discharge summary and on receipt of these documents, the opposite party immediately registered the reimbursement insurance claim with it and gave a claim number to the complainant. The opposite party assured the complainant that reimbursement of Rs. 3,91,456/- will be made to the complainant within a fortnight so the complainant awaited for this time for receiving the reimbursement. He further contended that the complainant was embarrassed and astonished when he received a letter dated 23.4.2023 addressed to the complainant whereby the OP had given vague reasons for denial of the reimbursement claim to the complainant whereby saying that the complainant had not disclosed the obesity at the time of inception of policy and prayed that the present complaint may be allowed.
5 On the other hands, Ld. counsel for the opposite party contended that a Medic-claim policy namely "POS CARE" bearing Policy No. 18315072 was availed by Ms. Kamlesh Chopra covering herself for the policy period of 25.9.2020 till 24.9.2023 for a sum insured up to Rs. 5,00,000/- subject to policy terms and conditions. A reimbursement claim (93091891-00) was received by the opposite party on 3.4.2023 for the hospitalization of the insured at Thappar Hospital and Research Institute from 19.3.2023 till 23.3.2023 for the diagnosed case of Sliding Hiatal Hernia. He further contended that after scrutinizing the documents received the opposite party rejected the claim on the grounds of Non- Disclosure of Obesity (High BMI> 37) at the time of policy inception and intimation in this regard was given to the complainant vide letter dated 23.4.2023. During the investigation, the complainant herself had filed in her weight to be 95 Kg, with height of 163 cms, hence her Body Mass Index falls under the range of obesity. As per underwriting guidelines of opposite party, had the same been disclosed, the policy would not have been issued in the first place. The complainant had an opportunity to declare the true state of health to the opposite party at the time of availing the policy, however, she refrained from doing so. Even at the time of availing the policy the complainant was bound under the doctrine of good faith to have disclosed the PED but failed to do so. The said disclosure would have assisted in foreseeing the risk at hand, the policy would have been issued accordingly. The claim of the complainant has been repudiated as per terms and conditions of the policy. If any untrue or incorrect statements are made or there has been a misrepresentation, mis-description or non-disclosure of any material particulars or any material information having been withheld or if a claim is fraudulently made or any fraudulent means or devices are used by the policyholder or the insured person or any one acting on his/their behalf, the company shall have no liability to make payment of any claims and the premium paid shall be forfeited ab intio to the Company. The Insurance Regulatory and Development Authority of India (IRDAI) (Protection of policy Holder's Interest) Regulations, 2017 under Clause 19(4) enumerating the "General Principal casts an absolute duty to disclose all material facts to the Insurer in order to assess the risk as per it's capacity. Thus the complainant herein is not only acting in breach of the Policy Terms and Conditions governing the policy, but also has acted in blatant violation of the above stated Regulations. Both the parties are bound with the terms and conditions of the policy and in this case the complainant has not complied with the terms and conditions of the policy and prayed that the present complaint may be dismissed.
6 We have carefully gone through the rival contentions of Ld.counsels for the parties.
7 In the present case, insurance is not disputed and it is also not disputed that the complainant has taken treatment from Thappar Hospital and Research Institute, G.T. Road Moga and was diagnosed with sliding Haital Hernia on 19.3.2023 and the complainant has taken the treatment from the said Hospital. The policy is Ex. OP3 and date of inception of policy is 25th Sept. 2020 and end date is 24th Sept. 2023 and the sum assured under the policy is Rs. 5,00,000/-. The complainant has placed on record treatment bills as Ex. C-2 and summary of treatment is Ex. C-3. During the currency period of policy i.e. on 19.3.2023 the complainant admitted in the hospital for treatment and discharged on 23.3.2023. The opposite party has rejected the claim of the complainant vide repudiation letter dated 23.4.2023 (Ex. OP/8) of the reason that Rejected Non- Disclosure of Obesity (High BMI> 37) , Non disclosure of material facts / Pre existing ailments at the time of proposal. The perusal of policy shows that the date of birth of complainant is 15th August 1960 and the complainant has obtained the policy on 25.9.2020 and at the time of obtaining the policy, the complainant was 60 years. Before issuance of the policy, it was the duty of the opposite party to conduct the medical test of the complainant. Reliance has been placed upon I.R.D.A.I Rules and Instructions with regard to thorough medical examination if the insured is more than 45 years which is reproduced as under:-
“As per instructions issued by the Insurance Regulatory and Development Authority of India (IRDAI), it was bounded duty of the insurer to put insured to thorough medical examination in case Mediclaim insured was more than 45 years and if insurance company failed to do so then insurance company has no right to decline the insurance claim on account of non disclosure of the facts of pre existing disease when the policy was taken. The above observations is supported by law cited in SBI General Insurance Company Limited Vs. Balwinder Singh Jolly” 2016(4) CLT 372 of the Hon’ble State Commission, Chandigarh.”
8 To support its version, the opposite party has placed on record certificate of one Dr. C.H. Asrani DNB (Family Medicine) MBBS 5 Rajkamal, Opposite Vidyanagari, Kalina, Mumbai and he gave conclusion that Insured has Class II Obesity which is a significant independent risk factor for hiatal hernia. Insured’s Sliding Hiatal Hernia is attributed to her Obesity. The opposite party has rejected the claim of the complainant on the opinion which was given by Dr. C.H. Asrani though the doctor has gone through the record of the patient and reached at the above said conclusion. It is beyond any stretch of imagination how the doctor who is sitting in Mumbai can opined regarding the health position of patient who is residing in Bhikhiwind who is far away about 1630 Kilometer approximately. The said doctor has just seen the record of the patient and he has not physically examined the complainant. He cannot say that “Insured has Class II Obesity which is a significant independent risk factor for hiatal hernia. Insured’s Sliding Hiatal Hernia is attributed to her Obesity” . However Dr. C.H. Asrani is not M.D. in Medicine. He is DNB (Family medicine) MBBS. On the other hands as per Ex. C-3 i.e. discharge summary, the complainant was admitted in Thapar Hospital & Research Institute G.T. Road Moga for the treatment of Sliding Hiatal Hernia. We are of the considered opinion that it is only the treating doctor who can give best advice to the patient as per current situation of the patient. So merely on the opinion of Doctor C.H. Asrani who is sitting in Mumbai, the opposite party has rejected the claim of the complainant amounts to deficiency in service on the part of the opposite party. Moreover no affidavit of Dr. C.H. Asrani has been placed on record and without affidavit report of Dr. C.H Asrani cannot be read. Moreover, there is no nexus between obesity and sliding Hiatal Hernia. The opposite party has failed to prove this fact on record.
9 Furthermore, It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of DharmendraGoel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.UshaYadav& Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
10 In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant and against the Opposite Party. The opposite Party is directed to make the payment of Rs.3,91,456/- to the complainant. The complainant has been harassed by the opposite party unnecessarily for a long time. The complainant is also entitled to Rs.10,000/- as compensation on account of harassment and mental agony and Rs 7,500 as litigation expenses. Opposite Party is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Commission
13.06.2024
